The dispute regarding termination as act of victimization falls exclusively within the jurisdiction

Rajneesh khajuria vs M/S Workhardt ltd., Civil Appeal No. 8989 of 2019 arising out of SLP (Civil) No. 6692 of 2015- JANUARY 15, 2020.

The present appeal was filed before the Supreme Court under the bench comprising of Justice Hemanth Gupta. J and Justice L. Nageswara Rao in order to challenge the order passed by the High Court of Judicature at Bombay.

The appellant was appointed as an employee in 1985 as a Professional Service Representative at Sagar, Madhya Pradesh and later was promoted to Field Sales Officer Grade FM-One. The employee was transferred to Mumbai in 2005 by the employer as per the conditions that the employer has the power to transfer the employee to any of its subsidiaries or sister companies during the course of employment.  As the employee failed to join the duty,  his service became terminated. Primarily the case was filed in the Industrial court which pronounced the judgment favouring the appellant that the termination of the employee is not real, it is fake and bogus because the employee didn’t receive any termination order. But the High Court of Bombay set aside the order of the Industrial Court.

 The issues framed by the bench are,

Whether the employee is entitled to dispute the termination order as not real or bona fide for the reason that it was not received by him?

Whether the employee is entitled to dispute his transfer as unfair labour practice?

Whether the question of malice in law can be inferred in the manner of transfer of an employee as unfair labour practice?

Whether the order of termination is ancillary to the order of transfer which confers the jurisdiction on the industrial court to exercise jurisdiction in the matter arising out of an allegation of unfair labour practice?

The court held that,

The termination order is not fake. The bench referred to the judgment of the case, State of Punjab vs Khemi Ram, that once the order is issued and transferred to the concerned government servant, it must be held to have been communicated to him, no matter when he actually received it. Thus the employee is not entitled to dispute the termination order as not real or bona fide for the reason that it was not received by him.

The issue regarding the unfair labour practice is decided based on “mala fide”. By referring the judgment pronounced in the case, State of Bihar and Anr vs P.P. Sharma., IAS and Anr, the employer has the power of transfer under administrative action in terms of letter of employment. The plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power .The transfer cannot be said to be an act of unfair labour practice unless it is actuated by mala fide. In referring another judgment, Prabodh Sagar vs Punjab State Electricity Board and ors, that the mere use of the expression “mala fide” would not by itself make the petition entertainable. As there is no mala fide intention on the side of the employer, the transfer is not regarded as an unfair labour practice.

The question regarding the transfer is ‘malice in law’ is decided based on the explanation given in the case, HMT Ltd and Anr vs Mudappa and ors, that ‘malice in law’ means ‘something done without lawful excuse’ and not necessarily an act done from ill feeling or spite. Here the employee is transferred after 20 years and that to the headquarters of the company. So the malice in law cannot be inferred in the manner of the transfer.

The final issue regarding the jurisdiction was decided based on referring the section 7 of the Industrial Disputes Act, that the unfair labour practice mentioned in Item 1 of Schedule IV fall within the jurisdiction of the labour court where the industrial court will not have jurisdiction to examine the question of termination as a consequence of the order of transfer. So, the labour court alone has the jurisdiction to decide the issue of alleged unlawful termination of the appellant.

On deciding the above-mentioned issues, the bench dismissed the appeal.

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–  Prithisha S

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